BOMMARAYIGOWDA Vs. KALEGOWDA

JUDGEMENT

(1.) The question for decision in this appeal is whether the dismissal of the suit filed by applts. on the ground that it is not a representative type is correct. The undisputed facts are that the properties described in the plaint schedule belonged to the joint family of defts. 1 to 4 of which deft. 1 is manager, that in a suit filed against deft. 1 for recovery of money due by his father to the heirs of one Kale Gowda there was a decree on 16-7-1937 for RS. 1420 against the assets of deceased Das'e Gowda in the hands of deft. 1 & the properties belonging to him: the ap. peal preferred by deft. 1 against the decree was eventually dismissed on 11-9-1940; Deft, l executed a settlement deed on 22-8-1940 giving away the properties to defts. 2 & 3: in execution of the decree against deft, l the properties were sold. Pltfs. 1 & 2 as vendees from the auction purchaser filed the suit from which this appeal arises for declaration of right, possession & mesne profits alleging that the settlement deed is a sham document executed with intent to defraud the decree-holders.

(2.) Both Cts. have held that the suit is not maintainable by virtue of Section 53(1), T. P. Act, as it has not been filed on behalf of all the creditors of deft, 1 & reld. upon 50 Mys. H.C. Reports 321 for dismissing it. On behalf of the pltfs. who have preferred this appeal, Sri Krishnamurthy contended that the view taken by the Cts. below is erroneous as the suit is not one filed by a creditor but is one filed by a purchaser who claims to be solely & absolutely entitled to the properties. Sri Lakshminaranappa on behalf of resps. contended that since the settlement deed is impugned as being fraudulent & sought to be avoided on that ground it is not permissible under the section for the pltfs. to claim the benefit of the reliefs in the suit to themselves exclusively & that this has been rightly disallowed.

(3.) Section 53, T. P. Act reads as follows: